Messer v. Texas Roadhouse Restaurant, No. 10-05-00340-CV (Tex. App. 5/9/2007)

• Decision Date: 09 May 2007
• Docket Number: No. 10-05-00340-CV.,10-05-00340-CV.
• Parties: MARJORIE MESSER, Appellant, v. TEXAS ROADHOUSE RESTAURANT, A/K/A TEXAS ROADHOUSE OF WACO, A/K/A TEXAS ROADHOUSE OF WACO, LLC, A/K/A TEXAS ROADHOUSE OF WACO, LTD, Appellee.
• Court: Texas Court of Appeals

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MARJORIE MESSER, Appellant, v. TEXAS ROADHOUSE RESTAURANT, A/K/A TEXAS ROADHOUSE OF WACO, A/K/A TEXAS ROADHOUSE OF WACO, LLC, A/K/A TEXAS ROADHOUSE OF WACO, LTD, Appellee.

No. 10-05-00340-CV.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed May 9, 2007.

Appeal from the 170th District Court, McLennan County, Texas, Trial Court No. 2004-1924-4.

Reversed and remanded.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

FELIPE REYNA, Justice.

Marjorie Messer appeals from a no-evidence summary judgment decreeing that she take nothing in her suit for damages sustained when she fell when stepping from an elevated booth on the premises of Texas Roadhouse Restaurant. Messer contends that she presented some evidence in her summary-judgment response to support each element of her claim. We will reverse and remand.

Background

Messer went to Texas Roadhouse for dinner with three companions. A waitress escorted them to an elevated booth, and Messer took an inside seat beside the wall and away from the drop-off. When they finished dinner, Messer forgot about the drop-off when she exited the booth and fell to the floor, suffering fractures of the wrist and pelvis and other injuries to the shoulder and back. Messer alleges that Texas Roadhouse is liable because: (1) it knew or should have known that the elevated booth posed an unreasonable risk of harm to invitees; (2) it failed to exercise ordinary care to reduce or eliminate this risk by: (a) warning Messer about the drop-off, (b) making distinguishing markings on the floor to indicate the existence of the drop-off, (c) attaching "a rail or some other feature" to remind patrons of the drop-off, (d) using adequate lighting, or (e) training employees to warn patrons of the drop-off; and (3) Texas Roadhouse's failure to exercise ordinary care was a proximate cause of Messer's injuries.

Texas Roadhouse generally denied these allegations and filed a no-evidence motion for summary judgment. Texas Roadhouse contends in this summary judgment motion that there is no evidence that: (1) it had actual or constructive knowledge of some condition on the premises, (2) the condition on the premises posed an unreasonable risk of harm, (3) Texas Roadhouse failed to exercise reasonable care to reduce or eliminate any unreasonable risk of harm, or (4) its alleged failure to use reasonable care proximately caused Messer's injuries.

Messer responded with photographic evidence of the premises, an incident report prepared by the manager on duty at the time of Messer's fall, and excerpts from Messer's deposition testimony.

After hearing argument of counsel and reviewing the pleadings, the court granted the summary judgment motion.

Applicable Law

We apply the same standard in reviewing a no-evidence summary judgment as we would in reviewing a directed verdict. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). "We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Id. at 582. A no-evidence summary judgment will be defeated if the non-movant produces some evidence "raising an issue of material fact" on the elements challenged by the movant. Id.

To prevail on a premises liability claim, a plaintiff must prove that (1) the landowner had actual or constructive knowledge of some condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) the landowner failed to exercise reasonable care to reduce or eliminate the unreasonable risk of harm, and (4) the landowner's failure to use reasonable care proximately caused the plaintiff's injuries. LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).

Unreasonable Risk of Harm

Messer must have produced some evidence raising an issue of material fact regarding the existence of a condition on Texas Roadhouse's premises which posed an unreasonable risk of harm.¹ Id. Messer's summary-judgment response states, in part, "Exhibits A, B and C raise genuine issues of material fact that would support a jury's determination that . . . the booth elevation was a dangerous condition."²

Exhibit "A" consists of photographs, two of which depict elevated booths in Texas Roadhouse. Exhibit "B" is the incident report prepared by the manager on duty at the time of Messer's fall. It states that the lighting was "dim" on the occasion in question. Exhibit "C" is Messer's deposition testimony. Messer testified that the area was dimly lit and she was unaware that the booth area was elevated.

Viewed in the light most favorable to Messer, this constitutes some evidence that the elevated booth posed an unreasonable risk of harm. See Burns v. Baylor Health Care Sys., 125 S.W.3d 589, 599 (Tex. App.-El Paso 2003, no pet.) (plaintiff/non-movant presented some evidence that curb in parking garage which was difficult to see because of poor lighting posed unreasonable risk of harm); Brooks v. First Assembly of God Church of Cleburne, 86 S.W.3d 793, 796-97 (Tex. App.-Waco 2002, no pet.) (plaintiff/non-movant raised fact issue regarding whether curb-stop in dark part of church parking lot posed unreasonable risk of harm), disapproved on other grounds by Binur v. Jacobo, 135 S.W.3d 646, 651 & n.11 (Tex. 2004).

Actual or Constructive Knowledge

Messer must also have produced some evidence raising an issue of material fact regarding whether Texas Roadhouse had actual or constructive knowledge of this condition. See LMB, 201 S.W.3d at 688. Messer argued in her summary-judgment response that "Exhibits A, B, and C" address Texas Roadhouse's actual or constructive knowledge.

From the photographic evidence, it can be seen that the elevated booth is a "permanent" condition of the premises and regularly used, not something temporary like liquid spilled on the floor. See Burns, 125 S.W.3d at 599-600 (plaintiff/non-movant presented some evidence regarding defendant's constructive knowledge because place of plaintiff/non-movant's fall was "a principle egress and ingress into the Baylor facility" and parking garage was regularly patrolled by Baylor security officers); cf. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002) (in slip-and-fall case involving spilled liquid, "there must be some proof of how long the hazard was there before liability can be imposed on the premises owner").

Therefore, viewing the evidence in the light most favorable to Messer, she presented some evidence that Texas Roadhouse had constructive knowledge that the elevated booth posed an unreasonable risk of harm.

Failure to Exercise Reasonable Care

We next consider whether Messer produced some evidence raising an issue of material fact regarding whether Texas Roadhouse failed to exercise reasonable care to reduce or eliminate this unreasonable risk of harm. See LMB, 201 S.W.3d at 688. Her summary-judgment response again refers to her three exhibits with regard to this element of her claim.

The photographic evidence indicates that Texas Roadhouse marked other areas of differing elevations. Messer testified in her deposition that Texas Roadhouse should have marked the elevated booth, improved the lighting, or had its waitpersons warn customers. Viewed in the light most favorable to Messer, this constitutes some evidence that Texas Roadhouse failed to exercise reasonable care to reduce or eliminate this unreasonable risk of harm. See Scroggs v. Am. Airlines, Inc., 150 S.W.3d 256, 262 (Tex. App.-Dallas 2004, no pet.).

Proximate Cause

The final element of Messer's claim is proximate cause. See LMB, 201 S.W.3d at 688. As with the other elements of her claim, Messer's summary-judgment response identifies her three exhibits as responsive to the issue of proximate cause.

Messer testified that she fell because the elevated booth was not marked and no one warned her. Viewed in the light most favorable to Messer, this constitutes some evidence that Texas Roadhouse's failure to use reasonable care to reduce or eliminate the unreasonable risk of harm was a proximate cause of Messer's injuries. See Scroggs, 150 S.W.3d at 262; Harwood v. Hines Interests Ltd. P'ship., 73 S.W.3d 450, 453 (Tex. App.-Houston [1st Dist.] 2002, no pet.).

Conclusion

Messer presented some evidence raising an issue of material fact on each of the elements of her claim challenged by Texas Roadhouse's summary judgment motion. See Mack Trucks, 206 S.W.3d at 582. Therefore, we reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

CONCURRING OPINION

BILL VANCE, Justice.

I fully join Justice Reyna's opinion and concur in the judgment, but I write separately to emphasize two points.

Adequacy of Summary Judgment Response

Messer's summary judgment response addresses the evidence on the second element—the condition posed an unreasonable risk of harm—by repeatedly referring to evidence of the elevated booth's "dangerous condition." That element is often shorthandedly referred to as the "unreasonably dangerous condition" or the "dangerous condition."¹ Messer's summary judgment response begins by noting that Texas Roadhouse asserts that "Plaintiff has no evidence that a condition which caused an unreasonable risk of harm to Plaintiff existed on the premises of Defendant, and (2) that, if such condition existed, Plaintiff has no evidence that Defendant had actual or constructive knowledge of the alleged condition on its premises." Messer then states one of the several legal issues presented by the no-evidence summary judgment motion: "1. Has Non-movant produced any factual evidence which would support a jury's finding that the elevated flooring of the booth created a dangerous condition for which Defendant owed Plaintiff a duty of reasonable care?" And Messer...